Point of View... The signing and performance of the company contract.

Published:

2021-11-24

Two basic principles that must be clear when signing a 1. contract (1) If the contract is not settled immediately, the parties must agree in writing. Because when such disputes arise, it is more conducive to both parties to clarify their responsibilities. The two basic purposes of the written agreement are: first, the two parties have determined their respective rights and obligations. However, some work units, in the economic exchanges for convenience or based on the trust of customers, and only by the other party's telegram, call, delivery notice, etc. to complete the delivery, if one party appears dishonest, it will be entangled, resulting in a contract dispute. At this time, because there is no way to prove or insufficient evidence, it is often impossible for one to file a case or to obtain the support of the people's court. (2) All provisions of the contract should be specific and detailed. The examination of the qualification of the subject of the contract signed by the 2.. According to different signatories, the following materials should be reviewed: (1) Signing by the legal representative of the other party in person 1. Whether the other party has a business license, and whether it is true, as well as the business scope and business period specified in the business license; 2. There is a difference between whether the legal representative recorded on the business license and the signatory on the contract; 3, the contractor's identity card and other relevant identity materials review; 4, the other party's business premises and whether normal operation, etc. (2) Signing by a specific salesman of the other party 1. Identification materials of the salesman; 2, the relationship between the salesman and the entrusting unit; 3. Can there be legal and efficient entrustment procedures between the salesman and the entrusting unit; 4. Whether the salesman has obtained the authorization of the entrusting unit, especially the authority of the entrusted agent and the time limit of the entrusted agent. Special precautions against unauthorized agents and ultra vires agents; 5. Whether the entrusted enterprise unit has a business license and whether it still exists at the time of signing the contract. In short, both parties must make specific and careful verification of the situation of the other party before signing. The method adopted can be through telephone consultation, letter, letter, door-to-door inspection, or to relevant government agencies to inquire about the situation. On the basis of some research, we can understand the actual situation of the other party more specifically, which is also the first step for both parties to sign a contract. Review of main contents of 3. contract Generally speaking, the specific content of the contract is jointly agreed by both parties, which mainly includes the following clauses: 1. The names and addresses of both parties; 2. The content of the target; 3. Total amount; 4. Quality; 5. Price or remuneration (payment time limit, payment method);6. Performance time limit, address and method; 7. Liability for breach of contract (economic loss compensation, liquidated damages accounting);8. Dispute resolution methods (people's courts, arbitration commissions). Under a more common service contract, each of the above-mentioned main provisions is described. (1) Review whether the name of the contract is consistent with the specific content of the contract. (2) The names and addresses of the parties in the contract. In addition to the strict examination procedures mentioned above for the subject qualification of the parties to the contract, it is critical that the name of the other party to the contract be carefully examined at the time of signing the contract whether it matches the official seal it has signed. (3) Do a good job in the review of the contract subject. From the service contract, to determine the scope of the service. For ambiguous commodity names, special explanations can be made to avoid unnecessary disputes. (4) Make the necessary approval of the total amount, price, amount, etc. of the subject matter. For service contracts, the service items and methods to be collected shall be determined. (5) The regulations and standards of product quality, as well as the requirements and time limit of the supplier for product quality management, must be clear and specific. In terms of service contracts, the specific provisions for the business they provide are clarified. (6) For the acceptance of the subject matter, the specific acceptance procedures should be strictly standardized. If the other party is requested to sign for it in time after receiving the subject matter, if there is any objection, we must inform us within the specified time limit, otherwise we shall be deemed to have completed the performance of the contract. (7) The method and time limit of payment. What kind of payment method is of vital importance to the realization of our creditor's rights, and a performance method with a relatively small risk factor should be selected according to the performance ability of the other party. When the buyer pays by bank check, it is inspected in accordance with the prescribed procedures to prevent the buyer from taking the subject matter with a false check. In order to avoid the opponent's false cheque, you can go directly to the drawer's bank to hold the cheque and record it, and you can verify that the cheque has been cashed. (8) The deposit clause can be clearly defined in the contract, which can effectively safeguard our interests. In addition, the terms of liability for breach of contract should be clearly defined in accordance with the principle of our advantage. The problems that should be paid attention to in the performance of the 4. contract. (1) The presence of a contract does not necessarily mean that the contract has been performed. At the end of the work, the other party should sign for the receipt. The receipt should be sealed as much as possible. If there is no seal, the authorized person should sign it. (2) If we have an obligation to pay and the other payee is inconsistent with the parties to the contract, the parties to the contract shall be asked to provide a description of the payment instructions. (3) If the other party asks a third party to pay us, the payer shall issue a payment voucher. (4) Pay attention to the retention of evidence in the performance of the contract. In the transaction, the transaction documents are not properly preserved. In the event of a dispute, due to incomplete documents, some of the transaction details have no evidence, and even some of the original documents are lost, leaving only a copy. Because the copy is easy to forge, the handwriting cannot be identified and cannot be independently used as evidence, it is difficult for the court to accept the copy when the other party does not admit it. (5) Close coordination between the business and finance departments to effectively collect accounts payable to avoid arrears exceeding the statute of limitations. (6) In case of disputes, attention should be paid to collecting and submitting the following evidence to prove the signing, performance and modification of the contract: 1, written contract or oral contract content, witness testimony; 2. evidence of the delivery of the subject matter or the provision of documents relating to the subject matter; 3. Evidence of delivery of relevant documents and information; 4, the receipt of the subject matter of evidence; 5, the subject matter quantity, quality objection notice of evidence; 6. Evidence of sample sealing and sample quality; 7. Evidence of a third party's claim to the subject matter; 8. Evidence of contract modification and termination; 9. Evidence of breach of contract; 10. The amount of compensation for breach of contract or loss and other evidence. The 5. combines the case to explain the matters needing attention in the process of signing and performing the contract. Case 1: Case concerning unauthorised representation The owner of the house, Party A, entrusts his mother to sell the house to Party B through an intermediary. After Party B pays part of the purchase price, Party A (the owner's mother) will hand over the house to Party B. Later, due to the rise in house prices, Party A believed that the sale of the house was at a loss and asked Party B to increase the house price, which Party B refused. Party A filed a lawsuit with the court, arguing that his mother had no right to sell the house, because the power of attorney only listed the management of the house and other matters, and did not explicitly authorize the sale of the house. In the course of the court hearing, it was found that in order to fulfill the house purchase contract between the two parties, Party A had changed the purchase receipt into an invoice at the developer's office and handed it to Party B for tax deduction. The court, based on other facts of the case, determined that although the authorization of the power of attorney was unclear, Party A had acted afterwards to ratify the fact that the house purchase contract between the two parties was valid. Tip: If you strictly review the principal's agency authority and matters when signing the contract, you can avoid leaving legal loopholes for the other party. Case 2: Credit investigation on signing a contract The plaintiff is an equipment leasing company, the defendant is the lessee, the plaintiff leases the equipment to the defendant for use, the defendant stores the goods in a third party, the third party and the defendant has a certain relevance, the plaintiff has always thought that the third party is the defendant's subordinate enterprises, the reason why the lease to the defendant is because the third party has the ability to perform. During the performance of the contract, the plaintiff found that the defendant was unable to perform the contract. After investigation, the third party and the defendant had a certain degree of relevance, but they were completely two independent subjects in law. There was no basis for requiring the third party to bear the responsibility in accordance with the law. Tip: In this case, if the lessor conducts an appropriate credit investigation at the time of signing the contract, this situation can be avoided. Case 3: Review of illegality in relation to the signing of a contract A cultural company (Party A) signed an agreement with another company (Party B) to sign an agreement on a certain service. In the signed contract, both parties agreed that Party A would deliver the corresponding service payment to the account designated by Party B, and then Party B would designate the payment to a certain person's account. Later, due to disputes over various services, Party B sued the court and required Party A to pay the corresponding service fee. Party A replied that Party B provided a personal account, in violation of the law, so failed to pay, failed to pay the reason in Party B. After trial by the court, the court found that the agreement violated the mandatory provisions of the Company Law and the Commercial Bank Law and was invalid. Tip: A basic part of reviewing a contract is a legality review. Case 4: Contract seal, inconsistent at the time of contract signing and performance A construction company (A) to the steel company (B) to buy steel, the buyer and seller signed a steel purchase and sale agreement, after the agreement is signed, the steel company will be transported to the construction company's site, the construction company received steel, stamped on the delivery note, but the chapter is not filed. After a dispute over the steel payment, Party B sued Party A to the court for payment of the steel payment. Party A replied that it did not receive Party B's steel, and the signature on Party B's delivery note was not Party A's. At the time of the lawsuit, all site personnel had been evacuated because the project had been completed. After careful investigation, the court confirmed that Party A received the steel from Party B and finally ruled in favor of Party B. Hint: The seal is inconsistent and occurs from time to time in the performance of the contract. This problem is worth noting. Case 5: Problems arising from fax, etc. in the performance of the contract Party A is a garment company and Party B is a fashion company. Party A is entrusted by Party B to contract labor and produce a batch of garments. The order form is sent by Party B to Party A by fax, but the fax number does not belong to the telephone number of Party B's company. After Party A completes the processing according to Party B's standards, Party B refuses to accept. For this dispute, Party A sued the court and asked Party B to pay the processing fee. Party B replied that Party A has never been entrusted with the processing of clothing and shall reject Party A's claim. Fortunately, before Party A's lawsuit, the recording evidence was preserved. After the first and second instance of the case, Party B was finally decided to lose the lawsuit. Note: The fax involved in this case should be paid attention to when performing the contract. The above cases are all frequent situations that occur in the process of signing and performing contracts. Company managers are reminded that in the process of signing contracts, if there are no corresponding preventive and remedial measures, it is difficult to protect rights and interests.

Key words: